CRIMINAL APPEAL No.122 OF 2004 (DB)
Against the judgment of conviction and order of sentence dated 22nd December, 2003
passed in Sessions Trial No. 76 of 1999 by Sri Ravi Prakash Dhar Dubey, Additional
Sessions Judge, Fast Track Court, No. III, Bettiah, West Champaran.
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RAJENDRA PRASAD PATWA SON OF ASHARFI LAL PATWA, RESIDENT OF
VILLAGE- CHANPATIA, P.S-CHANPATIA, DISTRICT- WEST CHAMPARAN
.....................................................................................APPELLANT
Versus
STATE OF BIHAR ..............................................RESPONDENT.
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For the Appellant :- Mrs. Veena Kumari Jaiswal, Advocate, Amicus Curiae
For the State :- Mr. Ashwini Kumar Sinha, APP
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PRESENT
THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA
THE HON'BLE MR. JUSTICE GOPAL PRASAD
S. K. Sharma & The sole appellant has preferred this appeal against
Gopal Prasad, JJ.
the judgment of conviction and order of sentence dated
22.12.2003 passed in Sessions Trial No. 76 of 1999 by the
learned Additional Sessions Judge, Fast Track Court No. III,
Bettiah, West Champran whereby he was convicted under
Sections 302 and 201 of the Indian Penal Code and he has
been sentenced to undergo rigorous imprisonment for life under
Section 302 of the Indian Penal Code and he has further been
sentenced to undergo rigorous imprisonment for three years
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under Section 201 of the Indian Penal Code. It was ordered that
both the sentences shall run concurrently.
2. The prosecution case, as arises from the
fardbeyan of the informant Rabindra Prasad is that he is making
statement on 3.4.1998 at 11.45 P.M. at the Veranda of one
Yamuna Prasad near the dead body of his son Shrawan Kumar
before the Sub-Inspector of Police of Chanpatia Police Station
that on 3.4.1998 his son was playing near his house at Durga
Mandir but he did not saw his son since 3.00 P.M. and then he
started making out a search for him but he could not find out and
thereafter, he went to announce on mike about missing of his
son in the nearby area but could not find him out. At about half
past seven in the evening when he returned to his house then at
8.30 P.M. one Neeraj Kumar (not examined) son of Vermajee
came and informed that the son of the informant is sleeping in
the Veranda of Yamuna Prasad. The informant rushed there and
found his son dead and found froth coming out from the nose of
his son and on head, face and nose he found the injury of some
hard blunt substance. On information the police came and on
the sound of weeping and cry several people collected and one
Ramesh Prasad son of Yamuna Prasad disclosed that when he
came after closing his shop then he found a boy sleeping at
Veranda then he called the lantern from the wife of Vermajee
and saw Shrawan Kumar lying there, whereas the fact is that ten
minutes prior to that when Yamuna Prasad came on the
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Veranda but he did not find Shrawan there. On cry several
persons collected there but the neighbour Rajendra Prasad
Patwa and his family members did not come there. The further
case of the prosecution is that the house of Rajendra Prasad
Patwa remained close and the informant doubted the complicity
of Rajendra Prasad Patwa due to old enmity and then Deepak
Kumar (PW 7), Mahabeer Prasad (not examined) and Pradeep
Kumar (PW 2) got the door of Rajendra Prasad Patwa opened
on which they found his bed wet and smell of urine from the bed.
They also found a blue jersey concealed in wet condition. Jersey
was seized and on inquiry about the jersey the appellant
Rajednra Prasad Patwa and his daughter Dolly Kumari
remained silent. It was doubted that Dolly Kumari and Rajendra
Prasad Patwa the appellant might have killed the son of
informant by hard blunt substance. It is further alleged that
earlier due to some enmity Dolly Kumari had threatened to kill
him. Further case is that Dolly Kumari had committed theft in the
house of Saral Mali which was protested by the daughter-in-law
of Yamuna Prasad. So it is doubted that the appellant Rajendra
Prasad Patwa and Dolly Kumari might have committed the
murder and thrown the dead body in the house of Yamuna
Prasad to falsely implicate him.
3. On the basis of aforesaid fardbeyan of Rabindra
Kumar the FIR was lodged and after investigation Chargesheet
was submitted. Consequently cognizance was taken and the
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case was committed to the Court of Sessions. After commitment
the charges were framed under Sections 302 and 201 of the
Indian Penal Code and explained to the appellant to which he
pleaded not guilty and claimed to be tried.
4. During trial eight witnesses were examined on
behalf of the prosecution; they are Ramesh Prasad (PW 1),
Pradeep Kumar (PW 2), Mahabeer Prasad (PW 3), Prabhawati
Devi the mother of the deceased (PW 4), Dr. Sunil Kumar (PW
5), the informant Rabindra Kumar (PW 6), Deepak Kumar (PW
7) and Md. Ali (PW 8).
5. Documentary evidences adduced on behalf of
the prosecution are: Signature of Pradeep Kumar on inquest
report (Ext.1), signature of Mahabeer Prasad on seizure list (Ext.
1/1), signature of Pradeep Kumar on seizure list (Ext. 1/2), post
mortem examination report (Ext.2), fardbeyan (Ext.3), seizure
list (Ext.4), inquest report (Ext.5) and formal FIR (Ext. 6).
6. On consideration of oral & documentary evidence
the learned trial Court convicted and sentenced the sole
appellant as stated above at the outset.
7. The Amicus Curie appearing for the appellant
contended that except the doubt there is no legal evidence to
infer that prosecution has proved the case beyond reasonable
doubt.
8. The learned counsel for the State however,
contended that the prosecution has proved its case beyond
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reasonable doubt.
9. Hence on the respective submissions of the
parties the question for consideration is whether the prosecution
has been able to prove the charges beyond all reasonable
doubts or not.
10. PW 1 in his evidence has stated that he saw the
child sleeping then he called his neighbour Vermajee and his
wife and disclosed that the child is of Rabindra Prasad. It was
about 8.30 P.M. on 3.4.1998 and thereafter, Rabindra Prasad
and his wife came and started weeping as the child was dead
and froth was coming out from mouth. The police informed and
search was made in the house of appellant Rajendra Prasad
Patwa as he has not come at the site of the occurrence and
from the house the blue jersey was recovered from his house
which was identified by the wife of Rabindra Prasad. However,
this witness in cross-examination has stated that he had not
entered into the house of the appellant but he saw Office In-
Charge coming out from the house of Rajendra Prasad Patwa
with the said jersey. He has also stated that by the side of the
house of the appellant Rajendra Prasad Patwa there is house of
Saran Mali.
11. PW 2 Pradeep Kumar however, supported the
prosecution case regarding recovery of the dead body of the
deceased but he has stated that the house of Rajendra Prasad
Patwa is adjoining to the house of Yamuna Prasad and he saw
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that the pant of the deceased was wet. However, this witness
has stated that there was search and seizure of the house of
Rajendra Prasad Patwa but he did not enter into the house and
a blue jersey was recovered from the house of Rajendra Prasad
Patwa. He has proved his signature on the seizure list which has
been marked as Ext. 3. This witness though is the witness of the
seizure list and has proved his signature on the seizure list but
he has stated that he had not been to the house of Rajendra
Prasad Patwa during search and hence not reliable on this
point. This witness in his cross-examination has stated that the
paper which was being written by Daroga was printed one and
he signed on the said paper at the instance of Daroga and on
the said paper Deepak has also signed.
12. PW 3 in his evidence has stated that a jersey
and a half paint were recovered from the house of Saral Bhagat
and Daroga has prepared the seizure list and after reading the
same he signed on the same. His signature on the seizure list
has been marked as Ext.1/1 and the signature of Pradeep
Kumar has been marked as Ext.1/2. He has also stated that the
inquest report of the deceased Shrawan Kumar was prepared
before him which was prepared in carbon copy and he has
proved the signature on the carbon copy of the same. In cross-
examination he stated that Saral Bhagat is not the accused in
this case and there is a wall in between the house of Saral
Bhagat and Rajendra Prasad Patwa.
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13. PW4 is the mother of the deceased and she has
stated that Shrawan aged about four years was playing by the
side of the Mandir but he became traceless and an
announcement was made on mic and then Neeraj Kumar came
and disclosed that her son was lying on the Veranda of Yamuna
Prasad. When she went there then found froth was coming out
from the mouth and nose and found him dead. There is injury
on his head and face. Thereafter, the police came and arrested
Dolly Kumari and Rajendra Prasad Patwa. She has stated that
Dolly Kumari was of suspicious character and has threatened to
kill her son and she has also committed theft. This witness has
stated that she doubts that Dolly Kumari had murdered his son
and further on question she has stated that she doubts that
Rajendra Prasad Patwa and Dolly Kumari have murdered her
son.
14. Now from the evidence of this witness only fact
comes out that her son was missing while he was playing by the
side of Mandir and later on his body was found in the Veranda of
Yamuna Prasad and when she came there then she found him
dead. She has further stated about the enmity with Dolly and
Rajendra Prasad Patwa and she doubts their hands in the
murder of her son.
15. PW 5 Dr. Sunil Kumar has conducted autopsy on
the person of the deceased and found external injuries. He
found rigor mortis was present, two abrasion of size 1 1/2″ and
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1/2″ x 1/2″ at the base of the neck, two bruises of size 1/2″, 1
1/2″ x 1/2″ at the right side of skull and one abrasion on nose
1/2″ x 1/2″. On dissection of the dead body blood and blood
clots were found present beneath the injury no. 2. There was
lenial fracture of skull and there was subdural haematoma and
time elapsed since death and post mortem was within 24 hours.
However, it is pertinent to mention here that the post mortem
was conducted on 4.4.1998 at 11.00 AM and death ceased to
be within 24 hours i.e. in between 11 AM on 4.4.19098 to !! AM
3.4.1998.
16. PW 6 is the informant. This witness in his
evidence has also stated that his son was found missing while
he was playing nearby Durga Mandir and he announced on
loudspeaker regarding his missing and the dead body was found
at the Veranda of Yamuna Prasad. This witness has stated that
he found the smell of urine and blue jersey was recovered from
the house of the appellant Rajendra Prasad Patwa which
belongs to his son. This witness has further stated about the
enmity with Dolly Kumari and Rajendra Prasad Patwa as stated
by PW 4 the mother of the deceased.
17. PW 7 is Deepak Kumar. He has also stated the
same fact about the finding the body of the deceased at the
Veranda of Yamuna Prasad, however, he is the seizure list
witness. He has stated that one jersey of blue colour was
recovered from the house of Saral Bhagat which was identified
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by Rabindra Prasad.
18. PW 8 is the formal witness. Hence from the entire
evidence it is apparent that there is no eye-witness to the
occurrence. None of the witnesses has seen either the assault
on the person of the deceased or the manner in which the
occurrence took place. However, only fact emerged that the
dead body of deceased Shrawan Kumar was found at 8.30 P.M.
at the Veranda of Yamuna Prasad and thereafter it was
informed to PW 4, the mother of the deceased, and then
Rabindra Prasad, the informant, and PW 6 and his wife PW 4
came and found the deceased dead. Thereafter, they doubted
about the hands of Rajendra Prasad Patwa and his daughter
Dolly Kumari and the second circumstance is that the whole of
the neighbours came to the place of occurrence but Rajendra
Prasad Patwa and his daughter Dolly Kumari did not come. It
has come that the informant doubted and then the door of
Rajendra Prasad Patwa was got opened by the witnesses and it
is alleged that the bed of Rajendra Prasad Patwa was found wet
and smell of urine was coming from the same. However, it has
further come that a blue jersey of the boy was recovered from
the courtyard in between the house of Rajendra Prasad Patwa
and Saral Bhagat. However, some of the witnesses have stated
that seizure was from the house of Rajendra Prasad Patwa and
some of the witnesses have stated that the seizure was from the
house of Saral Bhagat and hence, though there is no witness to
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the occurrence, none has seen that how he was taken over,
none has seen that how Shrawan Kumar was lying at the
Veranda of Yamuna Prasad and nor anyone has seen that how
he came there and only evidence is that he was found lying
dead at the Veranda of Yamuna Prasad. However, the evidence
is that when the dead body was recovered and information was
given to the people then there was a hue and cry but Rajendra
Prasad Patwa did not come out of his house. However, it has
come in evidence of the prosecution witnesses itself that there
was enmity between the informant and Rajendra Prasad Patwa
as the daughter of Rajendra Prasad Patwa is alleged to have
committed theft and further that Dolly Kumari was exposed for
the theft and hence that is the reason Rajendra Prasad Patwa
may not have come at the place of occurrence and from that fact
inference cannot be drawn that it is a chain of circumstance to
prove that the guilt is proved. The third circumstance is that the
blue jersey was alleged to be recovered from the house of
Rajendra Prasad Patwa, but the said jersey was recovered from
the wall in between the house of Saral Mali and Rajendra
Prasad Patwa. However, there were three circumstances which
are not sufficient to form a chain of circumstances to draw an
irresistible conclusion for the guilt of accused. Since this is a
case in which there is no eye witness to the occurrence or to
any part of the occurrence, hence, this case comes in the
category of circumstantial evidence. The three circumstances
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are only that the dead body was found on the Veranda, the
appellant Rajendra Prasad Patwa did not come after recovery of
the dead body at the place of dead body found on hue and cry
and the third is a blue jersey having been alleged to be
recovered from the wall in between the house of Rajendra
Prasad Patwa and Saral Mali.
19. Now the question is whether these three facts
complete the chain of circumstance which proves the guilt of
accused in all probabilities to come to an irresistible conclusion
that the appellant has done the death and that Rajendra Prasad
Patwa can be held guilty of the murder.
20. It is true that it is a matter of great regret that a
cold blooded murder go unpunished, but, however strong a
doubt may be, it cannot take the place of proof and there is a
great distance between may be proof and must be proof and this
distance of may be proof and must be proof, has to be traveled
by reliable, cogent and unimpeachable evidence and a doubt
may not be treated as proof, but proof must be beyond all
reasonable doubts. The evidences on record show that there is
no eye witness to any part of the occurrence, none has seen
deceased Shrawan Kumar in the house of Rajendra Prasad
Patwa or that his daughter took him away or taking him back
and the three circumstances which emerge from the prosecution
evidences are not sufficient to conclude that the chain of
circumstances is established pointing out the guilt of the
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appellant Rajendra Prasad Patwa to hold him guilty of the said
murder.
21. Hence, taking into consideration the entire
circumstances of the case, we find and hold that the prosecution
has not been able to establish the charges levelled against the
appellant beyond all reasonable doubts and the learned trial
Court erred in holding him guilty merely on the basis of
conjectures and surmises that the accused has been guilty.
Hence, the judgment of conviction and sentence is set side and
the appellant is ordered to be released forthwith, if not wanted in
any other case.
22. In the result, this appeal is allowed.
23. Let a copy of this judgment be served to Mrs.
Veena Kumari Jaiswal, Advocate, Amicus Curiae who will get
her remuneration as per the provision from the Patna High Court
Legal Services Committee.
(Shyam Kishore Sharma, J.)
(Gopal Prasad, J.
Patna High Court, Patna
Dated 7th April, 2010
Avin/N.A.F.R.